Witness Character

Question 1

Rules in the impeachment toolbox

Answer 1

• 608(a) opinion, reputation, veracity
• 608(b) untruthful conduct
• 609 prior conviction

Question 2

Types of non-character impeachment

Answer 2

• Attack as mistaken/perception/knowledge
• attack as lying now (contradiction by conflicting evidence, inconsistent statement, evidence of bias)

Question 3

Most common impeachment

Answer 3

• contradicting by past inconsistent statement
• Contradicting by conflicting evidence or circumstances
• Evidence of bias

Question 4

You can always introduce extrinsic evidence for ___

Answer 4

evidence of bias (denying violates 6A right to confront)

Question 5

Character evidence is inadmissible to impeach but _____

Answer 5

BUT big exception: 608 character of untruthfulness

Question 6

Counsel need only ____ to ask questions on cross that tend to incriminate witness (___)

Answer 6

reasonable basis, some facts that support genuine belief that witness committed offense

Question 7

608(b) allows specific instances of conduct cross BUT not extrinsic evidence, so ___

Answer 7

word of witness holds (might remind that under oath with threat of perjury)

Question 8

Whitmore convicted of firearm/drug charges; ran from Officer Soto who said he saw Whitmore throw something, later to be gun in window. Untruthful reputation evidence re Soto not admissible bc “lacked sufficiently supportive factual info” (reporter saying Soto has reputation as liar, criminal defense counsel saying Soto is untruthful, Edmonds who would testify Soto wrongly arrested him).

Answer 8

interactions “too remote” or too much a “subset of community” w crim d counsel). Allowed cross re Soto’s driving record that he failed to report to supervisors bc 608(b) allows specific instances of conduct for character of untruthfulness.

Question 9

“His reputation is terrible” by defense witness.

Answer 9

608(a) witness cross needs to be about truthfulness, so change question! (E.g. Based on what you know, would you believe this D

Question 10

Bar fight where Larken sued Parker for injuries from fight and called Rice as witness.
1) Rice’s neighbor says Rice’s reputation is good/truthful.

Answer 10

404(a)(3) allows witness evidence. 608(a) does not allow testimony of truthfulness unless untruthfulness attacked first.

Question 11

Bar fight where Larken sued Parker for injuries from fight and called Rice as witness.
2) Rice’s coworker says she’s a liar.

Answer 11

608(a) allows opinion evidence re untruthfulness.

Question 12

Bar fight where Larken sued Parker for injuries from fight and called Rice as witness.
3) Larken asks Rice’s coworker if it’s true she was expelled from college and lied about that on med school app.

Answer 12

608(b)(2) allows cross that is probative of character of untruthfulness of witness’s witness.

Question 13

609(a)(1)(A) says that if crime punishable by death or more than one year in prison in convicting jdx then _____ in a case where ___

Answer 13

must be admitted into evidence, witness is not a defendant

Question 14

609(a)(1)(B) says that if crime punishable by death or more than one year in prison in convicting jdx then must be admitted in criminal case where ___

Answer 14

probative value outweights prejudice

Question 15

609(a)(2) says any crime must be admitted regardless of punishment if ___

Answer 15

crime required proving dishonest act or false statement

Question 16

609(a)(2) is not subject to ___

Answer 16

403 unless other parts of 609 apply

Question 17

609(b) creates a ___

Answer 17

limit on using the evidence after 10 years

Question 18

609(c) says that evidence of a conviction not admissible if __

Answer 18

pardon or equivalent based on finding person rehabilitated and not crime punish death/1+ year OR pardon or equivalent based on innocence

Question 19

609(d) is about ___

Answer 19

juvenile convictions

Question 20

609(d) permits evidence of juvenile conviction only if __

Answer 20

• criminal case
• adjudication of witness other than D
• adult conviction for that offense admissible to attack adult’s credibility
• admitting evidence necessary to fairly determine guilt or innocence

Question 21

609(e) is about ___

Answer 21

pendency of appeal

Question 22

609(e) says that

Answer 22

A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible

Question 23

Charge of kidnapping, transporting stolen vehicle. Previously convicted for kidnapping, rape, aggravated assault, assault w deadly weapon. What gets admitted?

Answer 23

Admit for latter three convictions to sufficiently serve purpose of impeaching D’s credibility; probative value > prejudicial effect.

Question 24

Charge of kidnapping, transporting stolen vehicle. Previously convicted for kidnapping, rape, aggravated assault, assault w deadly weapon. What will not be admitted?

Answer 24

Inadmit kidnapping bc highly prejudicial (current charge is kidnapping

Question 25

609(b) 10 years rule applies to time when __

Answer 25

person last released

Question 26

Brewer five factors apply when ___

Answer 26

weighing probative vs. prejudicial effect when D is a witness

Question 27

Brewer factors

Answer 27

- nature of crime - time of conviction and witness' subsequent history - similarity between past crime and charged one - importance of D's testimony - centrality of credibility

Question 28

7 yo felony conviction for attempted murder for charge of burglary probably would be ___, even though could ___

Answer 28

be excluded under Brewer facts, come in under 609(a)

Question 29

When multiple convictions, strong reasons arise for excluding _____

Answer 29

crimes similar to present one bc of high prejudicial effect

Question 30

Grand theft charge in 2020. 1) Asked D on cross whether shot man in arm during drunken barroom brawl in 2014.

Answer 30

Inadmit. 608(b) does not allow cross unless probative of truthfulness. No mention of conviction, so not 609.

Question 31

Grand theft charge in 2020 Called witness to testify saw D shot man in arm.

Answer 31

Inadmit. 608(b) does not allow cross unless probative of truthfulness.

Question 32

Grand theft charge in 2020 Evidence D convicted of assault/battery, sentenced to serve 5 years in state prison for 2014 brawl.

Answer 32

Admit. 609(a)(1)(B) prior conviction admissible.

Question 33

Grand theft charge in 2020 Asked D on cross about conviction of turnstile jumping (3 mos county jail).

Answer 33

Inadmit. 609(a)(1)(B) only allows prior convictions of crimes punishable by death/>1 yr.

Question 34

Grand theft charge in 2020 Evid D convicted of lying to fed investigators, sentenced to two years. 2006.

Answer 34

Inadmit. 609(b) limits evid of convictions >10 yrs ago. Probative value could sway bc lying to feds is crucial to credibility, and low prejudice bc crimes are dissimilar. BC: Likely not coming in but arguable

Question 35

Drug use charge. D: “I’ve never taken steroids and would never take drugs.” → D became own character witness through 404(a)(2)(A). Cross: 1) Isn’t it a fact you smoke pot?

Answer 35

Admit. Impeach by contradiction.

Question 36

Drug use charge. D: “I’ve never taken steroids and would never take drugs.” → D became own character witness through 404(a)(2)(A). Cross: Isn’t it a fact you threw a game for gambling according to NYT?

Answer 36

Admit. Impeach as untruthful character with specific act 608(b)(1), but NYT not allowed bc extrinsic evidence.

Question 37

Drug use charge. D: “I’ve never taken steroids and would never take drugs.” → D became own character witness through 404(a)(2)(A). Cross: Isn’t it a fact you beat your children?

Answer 37

Inadmit. 404(a)(2)(A) requires character evid that is about D’s pertinent trait; charge is not about violence here. Also not thru 608(b)(1) bc 608 is about truthfulness.

Question 38

Drug use charge. D: “I’ve never taken steroids and would never take drugs.” → D became own character witness through 404(a)(2)(A). Cross: Isn’t it a fact you have a mistress unknown to your wife?

Answer 38

Inadmit. 608(b)(1) allows bc goes to character of truthfulness but too prejudicial.

Question 39

Drug use charge. D: “I’ve never taken steroids and would never take drugs.” → D became own character witness through 404(a)(2)(A). Cross: 5 yo conviction of battery punishable by up to 5 years?

Answer 39

Inadmit. Not really probative of character for truthfulness. Brewer, 609(a)(1)(B).